🤯👎🏼 EXPERTS’ CONDEMNATION OF BIDEN’S LATEST ANTI-ASYLUM BORDER GIMMICKS SWIFT, BRUTAL, TRUE!

From Eleanor Acer @ Human Rights First:

The president described the new approach as one intended to expand opportunities for migrants. But immigration advocates denounced the changes, saying that they included vast new restrictions on the right to claim asylum for people who need to escape their countries.

Eleanor Acer, the director of the refugee protection program at Human Rights First, called the new policies “a humanitarian disgrace” and said the president should not be adding restrictions on people who seek refuge in the United States.

“The Biden administration should be taking steps to restore asylum law at ports of entry,” she said, “not doubling down on cruel and counterproductive policies from the Trump playbook.”

https://lnkd.in/eJeDidzY

Biden Announces Major Crackdown on Illegal Border Crossings

nytimes.com • 2 min read

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From Amy Fischer @ Amnesty International USA:

“Amnesty International USA condemns the Biden Administration’s attack on the human right to seek asylum. Today, the Biden Administration fully reversed course on its stated commitment to human rights and racial justice by once again expanding the use of Title 42, announcing rulemaking on an asylum transit ban, expanding the use of expedited removal, and implementing a new system to require appointments through a mobile app for those desperately seeking safety. While we welcome the expanded humanitarian parole program to provide a pathway for Cubans, Haitians and Nicaraguans to apply for protection without having to make the dangerous journey to the border, that must not come at the expense of the human right to seek asylum. These new policies will undoubtedly have a disparate impact on Black, Brown, and Indigenous people seeking safety. In fact, Amnesty International previously found that the cruel treatment of Haitians under Title 42 subjected Haitian asylum seekers to arbitrary detention and discriminatory and humiliating ill-treatment that amounts to race-based torture. The United States has both a legal and moral obligation to uphold the right to seek asylum, and over the holidays, we once again saw communities mobilize to welcome asylum seekers with dignity. The Biden Administration must reverse course and stop these policies of exclusion, and instead uphold the right to seek asylum and invest in the communities that are stepping up to welcome.”

https://lawprofessors.typepad.com/immigration/2023/01/biden-administration-continues-to-attack-asylum.html

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From Mary Miller Flowers @ Young Center for Immigrant Children’s Rights:

“President Biden’s announcement today is a far cry from the commitments he made on day one to fight for racial justice, immigrant rights, and family protection,” Mary Miller Flowers, the senior policy analyst at the Young Center for Immigrant Children’s Rights, said in a statement.

“The right to asylum should not hinge on your manner of flight from danger or your financial means,” Flowers continued. “Seeking safety is treated as a privilege for a select few, and the Biden Administration’s cherry-picking of who can and cannot access protection proves this.”

https://www.huffpost.com/entry/joe-biden-border-policy-cubans-haitians-nicaraguans_n_63b72754e4b0ae9de1bcb181

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From Kate Jastrom @ Center for Gender & Refugee Studies @ Hastings Law:

“Today President Biden proudly touted his commitment to providing legal pathways for asylum seekers and improving conditions at the U.S.-Mexico border. These were empty words,” said Kate Jastram, CGRS Director of Policy & Advocacy. “By expanding its deadly Title 42 policy to Haitians, Cubans, and Nicaraguans, the Biden administration is going far beyond what any court has required it to do. This expansion will put vulnerable refugees in harm’s way and exacerbate violence and chaos in border communities.”

“People fleeing persecution have a legal right to seek asylum at our border under both U.S. and international law, no matter how they get here, no matter who they know, and no matter what documents they hold,” Jastram continued. “Many are forced to escape their homes under threat of death at a moment’s notice, with nothing more than the clothes on their backs. Their rights should never be supplanted by limited and discriminatory parole programs that offer relief only to a lucky few. We are also deeply disturbed that the administration has announced plans to revive and repackage the Trump-era asylum transit ban. President Biden cannot pledge to hold the ‘torch of liberty’ aloft, then turn around and embrace the most inhumane, anti-refugee policies of his predecessor.”

https://cgrs.uchastings.edu/news/biden-doubles-down-trump-era-cruelty-border

From Maria Daniella Prieshoff @ Tahirih Justice Center:

“This is truly a stain on the record of any administration seeking to uphold the U.S. asylum law and its responsibilities under international law. We must work together to ensure that for #JusticeForImmigrants is truly equal.”

**********

From Sen. Robert Menendez (D-N.J.):

Sen. Robert Menendez (D-N.J.), who along with Senate Majority Leader Charles E. Schumer (D-N.Y.) has pushed the Biden administration for months to end Title 42, criticized the administration’s plan, saying it goes too far in restricting migrants’ access to the border.

“The Biden Administration’s decision to expand Title 42, a disastrous and inhumane relic of the Trump Administration’s racist immigration agenda, is an affront to restoring rule of law at the border,” Menendez said in a statement. “Ultimately, this use of the parole authority is merely an attempt to replace our asylum laws, and thousands of asylum seekers waiting to present their cases will be hurt as a result.”

From Jonathan Blazer @ ACLU:

The American Civil Liberties Union, which has led the legal battle to stop the expulsions since the Trump administration, criticized Biden for continuing to rely on Title 42, saying expelling migrants will send them into dangerous border cities where some have been kidnapped or killed. “This knee-jerk expansion of Title 42 will put more lives in grave danger,” Jonathan Blazer, the ACLU’s director of border strategies, said in a statement.

Border Death — This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
In order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

From Margaret Cargioli @ Immigrant Defenders Law Center:

Margaret Cargioli, a lawyer with the Immigrant Defenders Law Center, said the program was effectively screening out migrants who lack U.S. connections or money to buy airplane tickets. She said Title 42 was “put in place by a racist and xenophobic administration” bent on stopping immigration, not protecting public health.

“It really does go against the nature of … ‘My life is in danger. I need to get out,’” she said at a Dec. 29 news conference. “And that is what the essence of an asylum seeker is.”

https://www.washingtonpost.com/politics/2023/01/05/biden-border-security-immigration/

***********************

Alas, no surprise to “Courtside” readers! The question is what can and will human rights supporters, progressives, and racial justice advocates DO about the consistent betrayal of humanitarian values values and the rule of law by Dems; not to mention Dems trashing their own campaign promises!

Trump’s nativist racism and Biden’s incompetence have actually moved our nation’s approach to legal refugee and asylum status BACK more than four decades! In place of the international framework put in place by Congress in the Refugee Act of 1980, we now have a hodgepodge of arbitrary, ad hoc, actions by the Biden Administration, relying to an unacceptable (and prima facie illegal) extent on the use of “emergency parole” authority as a partial substitute for legal refugee and asylee admissions!

This favors some non-refugees with “sponsors” over those who meet the accepted international definition of “refugee.” It promotes Executive and political favoritism over the needs of legal refugees. It stands on its head the normal refugee definition requiring an individual to be OUTSIDE their country of nationality to apply.

Congress did give the President extraordinary authority to admit those who otherwise meet the “refugee” definition directly from their native countries in conflict. However, rather than using this legal authority, Biden has chosen to misuse parole to EVADE it.

Even for those Venezuelans, Nicaraguans, Haitians, and Cubans fortunate enough to be chosen for parole, the first three groups will be left in limbo with no clear way of obtaining permanent immigration status after the expiration of their two-year “parole.” This obviously converts them into “political footballs” — particularly if the GOP were to regain the Presidency in 2024!

Paroled Cubans, on the other hand, might qualify for green cards under the “Cuban Adjustment Act of 1966” after one year. This creates yet another arbitrary inconsistency among those similarly situated, based solely on nationality.

The Refugee Act of 1980 creates a screening and adjustment process for those admitted as refugees thereunder, similar to the Cuban Adjustment Act. It also creates a similar process for those refugees granted asylum at the border or in the interior.

But, Biden’s choice NOT to use the existing legal provisions established by the Refugee Act of 1980, recreates exactly the type of disorder, arbitrariness, and uncertainty that the Refugee Act of 1980 was intended to end! And, they did in fact more or less end for nearly four decades, prior to the Trump-initiated fiascos that began in 2017 and which Biden, despite pledges to the contrary, has lacked the competence, expertise, and will to end and restore the rule of law!

If properly staffed with human rights experts and dynamic, visionary “practical scholars” as leaders, our legal refugee and asylum systems could not only be restored, but could also be dramatically improved and made fairer! That’s basically what Biden promised during the 2020 campaign.

Outrageously, once in office those promises have been trashed and, predictably, chaos and incompetence reigns. That’s a deadly combination for asylum seekers patiently waiting for our nation to honor its laws and international obligations!

It shouldn’t be like “waiting for Godot!” But, it is!

🇺🇸Due Process Forever!

PWS

02-06-22

🏴‍☠️ BREAKING: SCOFFLAW ALERT: LACKING COMPETENCE & ABILITY TO FAIRLY ADMINISTER REFUGEE & ASYLUM LAWS, LIKE TRUMP BEFORE HIM, BIDEN PROPOSES NEW “GIMMICKS” TO REWRITE LAW BY FIAT RATHER THAN LEGISLATION! — Expanded Use Of “Emergency Parole” To Replace Law’s Existing Refugee & Asylum Programs Appears Illegal!

Biden Border Message — “Border Message”
By Steve Sack
Reproduced under license

Biden’s new immigration plan would restrict illegal border crossings

The measures are likely to draw legal challenges. They would expand rapid expulsion for illegal border crossers but allow more migrants from Cuba, Nicaragua, Haiti and Venezuela.

Read in The Washington Post: https://apple.news/ARS8hkdNCShagYwOQlpmHkA

BY CLEVE R. WOOTSON JR., NICK MIROFF AND MARIA SACCHETTI report for WashPost, January 5, 2023 11:22 AM

President Biden on Thursday will announce new immigration restrictions, including the expansion of programs to remove people quickly without letting them seek asylum, in an attempt to address one of his administration’s most politically vulnerable issues at a time when the nation’s attention is focused on Republican disarray in the U.S. House.

The measures will expand Biden’s use of “parole” authority to allow 30,000 migrants from Cuba, Nicaragua, Haiti and Venezuela to come to the United States each month, as long as a U.S. sponsor applies for them first. But those who attempt to migrate through the region without authorization will risk rapid expulsion to Mexico, as the administration plans to expand its use of the pandemic-era Title 42 public health policy. Mexico has agreed to take back 30,000 border-crossers from those nations each month, U.S. officials told reporters during a briefing Thursday morning.

The measures, which are likely to draw legal challenges from immigration advocacy groups,”will expand and expedite legal pathways for orderly migration and result in new consequences for those who fail to use those legal pathways,” the White House announced.

Biden, who has said he will seek reelection in 2024, is contending with the political and operational fallout of two consecutive years of record numbers of migrants taken into custody at the Mexican border, in part because of his more welcoming policies.

Before taking office, Biden said he wanted an orderly system, not “2 million people on our border.” The number of border apprehensions jumped to 1.7 million during his first year in the White House, however, and soared to nearly 2.4 million in his second year. Biden campaigned on the promise that his administration’s immigration system would be “safe, orderly and humane”; his pivot toward amped up enforcement suggests the White House sees immigration as a 2024 liability.

The administration’s solution is legally thorny and will likely anger immigration advocates and even some Democrats — and will probably do little to silence Biden’s Republican critics.

. . . .

************************

Read the complete story at the link:

Biden’s plan effectively imposes arbitrary geographic and ideological restrictions on those seeking protection — something that Congress specifically intended to eliminate when enacting the Refugee Act of 1980;
Biden’s plan leaves out asylum seekers and refugees from the Northern Triangle, some of those most in need of protection;
It imposes arbitrary and illegal numerical limits on those who might otherwise seek asylum;
It continues the illegal and expanded use of Title 42 as a border enforcement mechanism having nothing whatsoever to do with public health — a position that the Administration itself has refuted in Federal Court all the way up to the Supremes;
It leaves those “paroled” in limbo with no clear path to legalization in the U.S., other than perhaps eventually applying for asylum in overloaded and often biased system with a backlog of many years;
Any future path to legal status for these parolees would require legislation agreed to by the GOP — not likely to happen — thus making these individuals “bargaining chips” for nativists seeking further restrictions on legal immigration and the right of asylum;
The “mass use” of parole at a rate of 30,000/month appears a direct violation of section 212(d)(5) of the INA, as amended by the Refugee Act of 1980, which specifically intended to end the “mass use” of parole as a substitute for admitting refugees under the legal framework set up by the Refugee Act of 1980, as amended.

Here’s a “spot on” comment by Margaret Cargioli from the Post article:

Margaret Cargioli, a lawyer with the Immigrant Defenders Law Center said the program was effectively screening out migrants who lack U.S. connections or money to buy airplane tickets. She said Title 42 was “put in place by a racist and xenophobic administration” bent on stopping immigration, not protecting public health.

“It really does go against the nature of … ‘My life is in danger. I need to get out,’ ” she said at a Dec. 29 news conference. “And that is what the essence of an asylum seeker is.”

🇺🇸 Due Process Forever!

PWS

01-05-23

🤮👨‍⚖️OUR FAILING COURTS👎🏽: Dean Erwin Chemerinsky Slams Supremes For Scofflaw, Politicized, Biased Title 42 Travesty — The Supremes’ Misconduct & Incompetence In This Case Affecting Human Lives Is Totally Unacceptable! 🏴‍☠️ — Progressives Must Take The Fight To The Neo-Fascist Right For American’s Future! — “The Supreme Court’s order is senseless!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=792adcfa-2c82-4cca-953c-bf1dfeb1a070

On Title 42, the Supreme Court rules for a partisan agenda

COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.

By Erwin Chemerinsky

The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.

Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.

The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.

.. . .

In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.

Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.

On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.

The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.

. . . .

The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.

In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”

The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.

. . . .

The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.

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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!

The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around! Likely not in my lifetime!

But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!

Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!

This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!

🇺🇸Due Process Forever!

PWS

01-02-23

🤯 ❓QUESTION OF THE DAY: “Biden says he wants to dismantle Title 42,” writes Catherine Rampell @ WashPost, “so why has he expanded it?”

By Catherine Rampell

https://www.washingtonpost.com/opinions/2022/12/29/title42-migrant-asylum-biden-solutions/

The Biden administration has long been saying that it wants to get rid of Title 42.

Why, then, has it been expanding use of this policy?

“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.

Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.

Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.

That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.

As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.

This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.

Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”

. . . .

Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.

To its credit, the Biden administration has taken baby steps on that last recommendation.

Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.

But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.

***********************

Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.” So true! So outrageous!

Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!

Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!

There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!

It’s all wrong! There are “tons” of cases rotting in Garland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!

The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.

For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.

The system is a godawful mess! Yet, Dems in Congress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!

The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!

Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.

And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.

With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!

There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!

🇺🇸 Due Process Forever!

PWS

12-31-22

🗽🇺🇸🤗 DMV AREA CONTINUES TO WELCOME MIGRANTS, EVEN AS NATIVIST GOP GOVS CONTINUE TO PLAY POLITICAL GAMES WITH HUMAN LIVES! 🏴‍☠️ 🚌

Theresa Vargas reports for WashPost:

https://www.washingtonpost.com/dc-md-va/2022/12/24/toy-donations-migrant-children/

. . . .

Migrant families have been used in political stunts this year. The governors for Texas and Arizona have sent them on buses to the District to make a statement, and in doing so, have treated people as the problem instead of the country’s immigration system, which doesn’t provide clear paths to citizenship for many. An estimated 11,000 migrants have been bused to the District, and while many have since left the region, hundreds alone remain in local hotels and shelters. Many of those are children.

Migrant children brought by bus to D.C. need help, not politics

A donated item dropped off at those hotels in recent days was one that a mom had been hoping to give her daughter — a toy kitchen.

Woods cried as she talked about the impact of that and the many other gifts that were received. The strangers who came together to help the families recognized the system is broken, not people, she said.

“They wanted to support people who have escaped trauma, climate crisis, gang violence and the most inhumane things possible to arrive here,” she said. It didn’t matter that they didn’t speak the same language or share the same experiences as those families, she said. “Everyone wanted to make sure they felt welcomed and had a good Christmas, and that’s the true spirit of Christmas.”

Here’s more on GOP political stunts with vulnerable humans as pawns from today’s WashPost:

https://www.washingtonpost.com/immigration/2022/12/25/migrants-dc-christmas-eve/

Three buses full of migrants arrived at Vice President Harris’s residence in Washington from Texas on Christmas Eve amid bitingly cold weather, a mutual aid group said, the latest in an influx of newcomers sent to the Northeast by Southern states.

About 110 to 130 men, women and children got off the buses outside the Naval Observatory on Saturday night in 18-degree weather after a two-day journey from South Texas, according to the Migrant Solidarity Mutual Aid Network. On the coldest Christmas Eve day on record in the District, some migrants were bundled up in blankets as they were greeted by volunteers who had received word that Texas Gov. Greg Abbott (R) had sent the caravan.

Volunteers scrambled to meet the asylum seekers after the buses, which were scheduled to arrive in New York on Christmas Day, were rerouted due to the winter weather. In a hastily arranged welcoming, a church on Capitol Hill agreed to temporarily shelter the group while one of the mutual aid groups, SAMU First Response, arranged 150 breakfasts, lunches and dinners by the restaurant chain Sardis.

“D.C. continues to be welcoming,” the network’s core organizer, Amy Fischer, told The Washington Post. “Whether it’s Christmas Eve, whether it’s freezing cold outside or warm outside, we are always ready to welcome people with open arms and make sure they have a warm reception in this community.”

. . . .

In D.C., the buses had been arriving all week — three from Arizona, another three from Texas — so Tatiana Laborde knew it was going to be an “intense” time. But on Friday, Laborde — who is the managing director of SAMU First Response, one of the agencies along with the mayor’s office and the mutual aid network helping with the migrants — found out about the three rerouted buses. They were scheduled to arrive Sunday morning, Christmas Day.

But then there was another surprise — the buses, from Del Rio, Tex., got in early, parking near the vice president’s Naval Observatory residence on Christmas Eve.

That destination appears to have more political significance than logistical purpose: While other buses have stopped at Union Station, the Naval Observatory is not near any other transportation hubs. The vice president was in D.C. this weekend.

. . . .

************************

While Biden Administration spokesperson Abdullah Hasan claimed that they were “willing to work with anyone,” the reality is quite different. The Biden Administration campaigned on the need to end the abusive, deadly Title 42 charade and restore order and the rule of law at the border. Yet, after two years they have accomplished little of substance in addressing this very predictable and urgent humanitarian situation.

The asylum system at both USCIS and EOIR remains a backlogged mess. Regulatory changes, some enacted over the strong objections of human rights legal experts, have failed to meaningfully improve the system.

The administrative legal precedents governing asylum are still unhelpful, often unrealistically restrictive, and frequently impede efficient granting of relief. Improvements for gender-based asylum seekers — directed in one of Biden’s first Executive Orders — are well over a year “overdue” and appear to have fallen off the “radar screen.”

The refugee system outside the U.S., which could have reduced asylum pressure, remains largely as broken and underutilized as the day Trump left office. Leadership and personnel changes at DHS and DOJ that should have been made early on were ignored by the Biden Administration.

Significantly, the Administration has neither taken a leadership role nor developed a coherent plan for the orderly, systematic, and rational resettlement of most asylum seekers away from border communities. This has left vulnerable individuals who are legally entitled to apply for asylum at the mercy of grandstanding GOP nativist governors.

It has also overtaxed and overwhelmed border communities and NGOs in “receiving localities” throughout the U.S. There has been no coordination of essential Immigration Court and Asylum Office notices and scheduling with the actual destinations of asylum seekers and with those available to support and represent them. In other words, the Administration has presided over an inexcusable, and unnecessary, mess!

Regardless of its merits, so-called “comprehensive immigration reform” clearly isn’t on the horizon. That means that it’s up to the elected officials — the Biden Administration — to make the current law work — without resorting to illegal and counterproductive gimmicks like Title 42 and “expedited dockets.” That means cutting the whining and finger pointing and getting to work governing and solving immigration problems!

That takes courage, boldness, expertise, human values, creativity, urgency, and competence — seven areas where the Biden Administration has been sorely lacking when it comes to immigration, human rights, and racial justice!

🇺🇸 Due Process Forever!

PWS

12-26-22

🏰🏴‍☠️“FORTRESS EUROPE” HAS RECEDED FROM U.N. REFUGEE CONVENTION — SPOILER ALERT: It Hasn’t Gone Well! — The US Appears Wedded To The Same Path Of Failure & Deadly Human Rights Abuses!☠️⚰️

Chico Harlan & Stefano Pitrelli report for WashPost:

https://www.washingtonpost.com/world/2022/12/19/migration-europe-numbers-increase/

CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering

Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.

“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.

France accepts migrant rescue ship rejected by Italy as tensions flare

The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.

But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.

“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”

. . . .

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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.

Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.

Even today, nativist GOP Sen. Mike Lee (R-UT) seeks to “sink” the Omnibus Budget Bill with a “poison pill” amendment that would require the Biden Administration to extend the deadly and illegal Title 42. https://thehill.com/homenews/senate/3784529-mike-lee-title-42-drama-holds-up-omnibus-passage/

Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.

While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!

As Nolan Rappaport recently said over on The Hill, “Title 42 is a distraction, not the solution. . . . . And Title 42 didn’t prevent a surge in the number of illegal crossings.” https://thehill.com/opinion/immigration/3782869-bidens-border-crisis-title-42-is-a-distraction-not-the-solution/.

Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.

As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.

Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.

In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.

That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!

🇺🇸 Due Process Forever!

PWS

12-22-22

🤯“The words egregious and illegal don’t go far enough!” — LATEST SCREW-UP BY DHS ENDANGERS CUBAN ASYLUM SEEKERS!

Hamed Aleaziz reports for the LA Times:

https://www.latimes.com/world-nation/story/2022-12-19/cuba-immigrants-deported-asylum-leak

The Department of Homeland Security inadvertently tipped off the Cuban government this month that some of the immigrants the agency sought to deport to the island nation had asked the U.S. for protection from persecution or torture, officials said Monday.

Immigration and Customs Enforcement officials are now scrambling to foreclose the possibility that the Cuban government could retaliate against individuals it knows sought protection here. The agency has paused its effort to deport the immigrants in question and is considering releasing them from U.S. custody.

The accidental disclosure to the Cuban government is an example of any asylum seeker’s “nightmare scenario,” said Robyn Barnard, associate director of refugee advocacy at Human Rights First.

Many immigrants who seek safety in the U.S. fear that gangs, governments, or individuals back home will find out that they did so and retaliate against them or their families. To mitigate that risk, a federal regulation generally forbids the release of personal information of people seeking asylum and other protections without sign-off by top Homeland Security officials.

“The words egregious and illegal don’t go far enough,” Barnard said. “And this is not any foreign government, but a government we have irrefutable evidence routinely detains and tortures those they suspect of being in opposition to them.”

An even larger breach of confidentiality last month led directly to the surprising disclosure to the Cuban government. Less than three weeks ago, Immigration and Customs Enforcement officials accidentally posted the names, birth dates, nationalities and detention locations of more than 6,000 immigrants who claimed to be fleeing torture and persecution to the agency’s website.

. . . .

Anwen Hughes, director of legal strategy at Human Rights First, has years of experience comforting asylum seekers who are worried that their home countries will find out about their applications.

“They come in nervous, shaking and afraid their relatives could get arrested,” Hughes said.

Hughes has long told her clients that they should feel secure that their information would be protected.

But the most recent disclosures have given her pause.

“I don’t want to say things that won’t be true,” she said. “It is important that these assurances be meaningful.”

ICE’s November disclosure of the 6,252 names had already triggered a massive effort by the agency toinvestigate the causes of the error andreduce the risk of retaliation against immigrants whose information was exposed.

. . . .

*****************

Read Hamed’s complete article at the link.

Robyn Barnard
Associate Director of Refugee Advocacy
Human Rights First
PHOTO: Linkedin

Thanks for speaking out so forcefully, Robyn! There is Fourth Circuit case law holding that breaches of confidentiality can give rise to entirely new asylum claims that require evaluation by adjudicators.

As cogently pointed out by Anwen, problems like this also diminish confidence in the system. That, in turn, undermines efforts by advocates to assure asylum applicants that they should use the legal system, rather than being afraid of it. This is also something that the Government should be doing, but isn’t!

For example, right now at the southern border, thousands of asylum applicants are waiting patiently in Mexico, many in dangerous and substandard conditions, for Title 42 to end so they can appear at legal ports of entry and present their claims in an orderly and legal manner. This right for “any individual, regardless of status” to apply for asylum, is guaranteed by law. Every stay or delay in the lifting of Title 42 undermines the credibility of the entire system.

As cogently found by U.S. District Judge Emmet Sullivan, asylum applicants have been illegally denied this “life or death right” to apply for asylum in an orderly manner at the border since 2020, first by the Trump Administration and now by the Biden Administration. Tellingly, the GOP nativist politicos (and, sadly, some Dems) promoting continuing abuse of Title 42 have abandoned the original Trump claim that it was a “public health measure.” They now openly present it as a “border management tool” something that it clearly was never intended to be!

Contrary to the nativist blather, the unlawful suspension of the legal asylum system at ports of entry has actually driven irregular entries, rather than discouraging them! Additionally, nativists and many member of the media fail to acknowledge that, even without Title 42, the existing law grants DHS extraordinarily authority to “summarily remove” asylum seekers if they can’t establish a “credible fear“ of asylum in an interview by a trained and well-qualified Asylum Officer.

This process was designed to take place within a relatively short period of time, at or near the border, after the individual has indicated a fear of return upon initial encounter with an Immigration Inspector at a port of entry or to a Border Patrol Agent. Those who “fail” the credible fear process can be summarily removed by DHS without formal removal proceedings before an Immigration Judge (although there is a right to request a brief review by an Immigraton Judge of the Asylum Officer’s negative decision).

Additionally, under recently enacted regulations, Asylum Officers can now grant asylum to those who pass credible fear if they find that the generous “well-found fear” standard has been met. This also has the potential of avoiding full Immigration Court hearings. Unfortunately, however, DHS to date has failed to “leverage” this ability to rapidly grant asylum, even though the potential volume of asylum seekers has been evident for many months, if not years!

It’s also notable, in contravention of many nativist politico claims, that individuals crossing the border to seek asylum often voluntarily turn themselves in to the Border Patrol so that they can get the legal screening that the Government has been improperly denying them under Title 42.

Life threatening mistakes, two years without a plan to restore the rule of law for asylum seekers, inaccurate data, bad legal rulings, many poorly qualified judges, inadequate training, failure to use and leverage refugee programs, screwed up priorities, regressive thinking, lack of expertise, no commitment to protection, unending backlogs, absence of inspiring dynamic leadership: The Biden Administration’s inept and morally vapid approach to human rights is a life-threatening mess!

🇺🇸 Due Process Forever!

PWS

12-20-22

☠️🏴‍☠️💀⚰️🤮 “SEASON’S GREETINGS” — AS POLITICOS OF BOTH PARTIES FALSELY CLAIM THAT TITLE 42 IS NECESSARY, REMEMBER THAT THEY ARE PROMOTING: 1) Continuing Violation of US & International Laws Protecting Asylum Seekers; 2) Continuing Gross Abuses Of Human Rights; & 3)“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”

Four Horsemen — A HOLIDAY MESSAGE FROM US POLITICOS OF BOTH PARTIES TO LEGAL ASYLUM SEEKERS: “Suffer & Die!”
Albrecht Dürer, Public domain, via Wikimedia Commons

Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:

It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor. See Huisha-Huisha, 27 F.4th at 724-25 (describing the “procedural and substantive rights” of aliens, such as asylum seekers, “to resist expulsion”); cf. Regents, 140 S. Ct. at 1914-15 (holding that agency should have considered the effect rescission of DACA would have on the program’s recipients prior to the agency making its decision). As Defendants concede, “a Title 42 order involving persons will always have consequences for migrants,” Defs.’ Opp’n, ECF No. 147 at 42, and numerous public comments during the Title 42 policy rulemaking informed CDC that implementation of its orders would likely expel migrants to locations with a “high

29

probability” of “persecution, torture, violent assaults, or rape.” See Pls.’ Mot., ECF No. 144-1 at 27; see also id. at 27- 28 (listing groups subject to expulsion under Title 42, including “survivors of domestic violence and their children, who have endured years of abuse”; “survivors of sexual assault and rape, who are at risk of being stalked, attacked, or murdered by their persecutors in Mexico or elsewhere”; and “LGBTQ+ individuals from countries where their gender identity or sexual orientation is criminalized or for whom expulsion to Mexico or elsewhere makes them prime targets for persecution” (citing AR, ECF No. 154 at 28-29, 47, 153) (cleaned up)). It is undisputed that the impact on migrants was indeed dire. See, e.g., Huisha-Huisha, 27 F.4th at 734 (finding Plaintiffs would suffer irreparable harm if expelled to places where they would be persecuted or tortured).

The CDC “has considerable flexibility in carrying out its responsibility,” Regents, 140 S. Ct. at 1914, and the Court is mindful that it “is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). But regardless of the CDC’s conclusion, its decision to ignore the harm that could be caused by issuing its Title 42 orders was arbitrary and capricious.

30

3. The Title 42 Policy Failed to Adequately

Consider Alternatives

Plaintiffs also argue that the Title 42 policy is arbitrary and capricious because CDC failed to adequately consider alternatives and the policy did not rationally serve its stated purpose. See Pls.’ Mot., ECF No. 144-1 at 10-11.

(29-31)

However, despite the above, Defendants have not shown that the risk of migrants spreading COVID-19 is “a real problem.” District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 27 (D.D.C. 2020) (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)). “Professing that an agency action ameliorates a real problem but then citing no evidence demonstrating that there is in fact a problem is not reasoned decisionmaking.” Id. (cleaned up); see Huisha-Huisha, 27 F.4th at 735 (“[W]e would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none.”). As Plaintiffs point out, record evidence indicates that “during the first seven months of the Title 42 policy, CBP encountered on average just one migrant per day who tested positive for COVID-19.” Pls.’ Mot., ECF No. 144-1 at 22 (citing Sealed AR, ECF No. 155-1 at 23). In addition, at the time of the August 2021 Order, the rate of daily COVID-19 cases in the United States was almost double the incidence rate in Mexico and substantially higher than the incidence rate in Canada. See 86 Fed. Reg. at 42831 (noting 137.9 daily cases per 100,000 people in the United States, compared to 68.6 in Mexico and 8.0 in Canada). The lack of evidence regarding the effectiveness of the Title 42 policy is especially egregious in view of CDC’s previous conclusion that “the use of quarantine and travel restrictions, in the absence of evidence of their utility, is detrimental to efforts to combat the spread of communicable disease,” Control of Communicable Diseases, 82 Fed.

39

Reg. 6890, 6896; as well as record evidence discussing the “recidivism” created by the Title 42 policy, which actually increased the number of times migrants were encountered by CBP, see AR, ECF No. 154 at 45 (commenter describing recidivism); AR, ECF No. 155-1 at 4 (January/February 2021 statistics showing nearly 40% of family units DHS encountered in January-February 15, 2021 were migrants who had attempted to cross at least once before).

(39-40)

Particularly in view of the harms Plaintiffs face if summarily

expelled to countries they may be persecuted or tortured, the Court

42

therefore vacates the Title 42 policy. Cf. Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”).

(42-43)

Meanwhile, Plaintiffs have presented evidence demonstrating that the rate of summary expulsions pursuant to the Title 42 policy has nearly doubled since September 2021. See Pls.’ Mot., ECF No. 144-1 at 30 (“At the time of this Court’s original decision, approximately 14% of

45

families encountered at the southwest border were being summarily expelled pursuant to the Title 42 policy. . . . Now, the rate of expulsions is nearly twice as high, reaching 27%.”); see also Pls.’ Reply, ECF No. 149-1 at 31 (“[I]n the month of July 2022 alone, 9,574 members of family units encountered at the southern border were summarily expelled pursuant to the Title 42 policy.”). And “[i]n Mexico alone, recorded incidents” of “kidnapping, rapes, and other violence against noncitizens subject to Title 42” have “spiked from 3,250 cases in June 2021 to over 10,318 in June 2022.” Pls.’ Mot., ECF No. 144-1 at 30 (citing Neusner Decl., ECF No. 118-4; Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022)). Accordingly, even if the Court accepts Defendants’ unsupported statement that the “situation for class members has improved,” the evidence demonstrates that Plaintiffs continue to face irreparable harm that is beyond remediation. See Huisha-Huisha, 27 F.4th at 733 (“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”).

N

(45-46)

Because “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate,” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court concludes that an injunction in this case would serve the public interest, see A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and public can have little interest in executing removal orders that are based on statutory violations . . . .”).

Moreover, Defendants do not contend that issuing a

permanent injunction would cause them harm or be inconsistent

with the public health. Indeed, “CDC recognizes that the current

public health conditions no longer require the continuation of

47

the August 2021 order,” Defs.’ Opp’n, ECF No. 147 at 44; see also Pls.’ Mot., ECF No. 144-1 at 30, in view of the “less burdensome measures that are now available,” 87 Fed Reg. at 19944; id. at 19949–50. The parties also do not dispute that Plaintiffs continue to face substantial harm if they are returned to their home countries, notwithstanding the availability of USCIS screenings. See, e.g., Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022). As the Supreme Court has explained, the public has a strong interest in “preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436.

(47-48)

***********************************

So, when you hear guys like Abbott, Ducey, DeSantis, Manchin, Cuellar, Gonzales, GOP nativist AGs, and the like use this holiday season during which we are supposed to be celebrating messages of hope, faith, mercy, and “goodwill toward men” to extol the virtues of illegal expulsions under Title 42, remember what their are REALLY saying:

“I want the US to continue violating domestic and international laws protecting refugees and asylum seekers, to continue to knowingly violate the human rights and human dignity of asylum seekers, and to place our fellow humans in danger zones where they will suffer stomach-churning episodes of death, torture, and rape. I don’t believe our nation is capable of complying with our duly-enacted laws to protect refugees and asylum seekers that have been in effect since 1981 until 2020 when they were illegally suspended by the Trump Administration using a public health pretext, as found by a Federal Judge. I urge the Biden Administration, which has already illegally expelled hundreds of thousands of migrants with no due process, to continue committing grotesque violations of the law and human rights and to increase the violations so that more men, women, and children will suffer rape, torture, an dearth as a consequence. This is my holiday season message to America and humanity: Peace on earth and goodwill toward all mankind, EXCEPT those seeking legal asylum by applying at our Southern Border. To them: rape, torture, and death without due process!

Title 42 expulsions of asylum seekers are a clear violation of Judeo-Christian ethics. To be advocating for its continuing application at any time, let alone during this season, is the height of hypocrisy; so is characterizing the largely self-inflicted mess at the Southern Border as a “humanitarian emergency” and then proposing to “solve” it by sending legal asylum seekers back to rape, torture, kidnapping, robbery, extortion, and death in Mexico and other nations in turmoil without any type of process to determine whether they have a “credible fear” of persecution, as required by law.

🇺🇸 Due Process Forever!

PWS

12-19-22

🤯TRAC: GARLAND’S IMMIGRATION COURT BACKLOG HITS 2 MILLION: More Judges, More Completions, Less Representation, Defective BIA, Mindless Mal-Administration = More Backlog!

Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer?
Michigan Stadium Photo by Andrew Horne, Creative Commons License

Here’s the latest from TRAC Immigration:

TRAC — EOIR Backlog 2 million

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Quick takes:

Even at this accelerated completion rate, on an annualized basis, I calculate that EOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.

Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022. https://wp.me/p8eeJm-7dT

I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.

Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!

Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!

Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!

🇺🇸 Due Process Forever!

PWS

12-16-22

🗽⚖️🇺🇸👍🏼 NDPA WINS AGAIN: CARLA ESPINOZA CRUSHES GARLAND ON CAT IN 5TH — Conservative Circuit Wearies Of BIA’s Lawless Approach: “Complete Lack of Discussion of…Evidence”

Dan Kowalski reports for LexisNexis Immigration Community:

CA5 Blasts BIA for “Complete Lack of Discussion of…Evidence” in Mexican CAT Case

Aguado-Cuevas v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/21/21-60574.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-blasts-bia-for-complete-lack-of-discussion-of-evidence-in-mexican-cat-case#

“Oscar Aguado-Cuevas, a Mexican national, petitions for review of the BIA’s decision affirming a denial of his application for relief under the Convention Against Torture. For the reasons below, we GRANT the petition, VACATE the BIA’s decision, and REMAND this case for further consideration of Aguado-Cuevas’s petition for CAT protection. … Aguado-Cuevas filed an application for relief under the Convention Against Torture (“CAT”), arguing that his uncles and cousins in Mexico were cartel members who would kill him if he returned. In September 2020, Aguado-Cuevas, his father, and an expert witness testified in support of Aguado-Cuevas’s CAT application. … Aguado-Cuevas signed a cooperation agreement and began cooperating with federal authorities. Aguado-Cuevas’s cooperation, including his agreement to testify against Adolfo Jr. and CJNG, was leaked to the media and publicized online. … [A]n expert witness testified that Aguado-Cuevas’s chances of potential risk or torture upon returning to Mexico were “[e]xtremely high to [a] near certainty” due to his informant and debtor status. … [T]he BIA erred by not applying the correct legal framework in which it must show that it meaningfully considered “relevant substantial evidence supporting the alien’s claims.” … Although we remand primarily for the BIA to reconsider the state involvement prong of the CAT analysis, we note that both parties acknowledge that the BIA’s likelihood of torture analysis suffers from similar deficiencies. Accordingly, to the extent that the BIA finds that Aguado-Cuevas has shown the requisite level of state involvement upon remand, we order the BIA to also consider the likelihood of torture prong under the proper legal framework. … Aguado-Cuevas claims that he will be murdered by CJNG as punishment for being an informant and debtor following his drug-related activities in the U.S. Concerning the likelihood of torture, Aguado-Cuevas argues—and the Government agrees—that the BIA should have more closely considered evidence of Aguado-Cuevas’s actions in the U.S. that could characterize him to CJNG as an informant and debtor. Specifically, the BIA did not properly consider evidence that (1) Aguado-Cuevas owed CJNG $120,000 after his botched deal; (2) Aguado-Cuevas was identified by the media as an informant in the prosecution of a CJNG member; (3) a text message identified Aguado-Cuevas as a potential target of the CJNG; (4) a residence where Aguado-Cuevas stayed was ransacked; and (5) CJNG routinely kills debtors and informants. Such evidence goes directly to Aguado-Cuevas’s arguments of likelihood of torture as an informant and debtor; such a theory hinges not on events in Mexico but on his actions in the U.S., making him a particular target for torture by CJNG. The BIA failed to properly consider these pieces of evidence. … The complete lack of discussion of the aforementioned evidence suggests that the BIA has not met this standard. As before, the BIA should remand to the IJ for additional factfinding if necessary.”

[Hats way off to Superlawyer Carla Espinoza!]

Carla Espinoza ESQUIRE
Chicago Immigration Advocates Law Offices

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

**************

Many congrats and thanks Carla! There is an”epidemic” of botched CAT cases being “outed” by the Circuits. This one was so horribly mishandled, that even OIL couldn’t defend it!

Yet, the “downbeat goes on” as Garland feigns ignorance of the institutionalized injustice @ EOIR being carried out in his name! On his watch, the BIA has gone from “any reason to deny” to “no reason whatsoever for denying.”

Apparently, as long as the BIA staff attorney drafts the decision so the individual loses, it really doesn’t matter to the “signatory appellate judge” at the BIA what goes above the “bottom line.”

It’s a heck of a way to “run the railroad” 🚂 with human lives at stake and an ever growing, out of control, 2 million case backlog! After 2.5 years bouncing around the EOIR system, this particular case is headed back to the IJ in a never ending quest for competent judging, due process, and fundamental fairness. All three of the foregoing are elusive qualities at Garland’s EOIR!

Garland’s so-called “dedicated dockets” gimmick has been a total failure from a due process and fundamental fairness standpoint. See, e.g., https://trac.syr.edu/reports/704.

The only “dedicated docket” that Garland REALLY needs at EOIR is one dedicated to getting the results right in the first instance! But, that readily achievable objective (although NOT without major, long over due personnel changes in “management,” the BIA, and among some IJs) appears of little interest to Garland or the Biden Administration. Thus, the latest Dem Administration appears content to let the dysfunctional EOIR system limp on spewing injustice, bad law, and insurmountable backlogs on its downward spiral!

🇺🇸 Due Process Forever!

PWS

12-13-22

🇺🇸🗽⚖️ JOIN AFSC IN OPPOSING THE BIDEN ADMINISTRATION’S EMBRACE OF TITLE 42 & THE DAILY VIOLATIONS OF HUMAN RIGHTS THE ADMINISTRATION COMMITS 🏴‍☠️ USING THIS UNLAWFUL & IMMORAL CHARADE!

https://www.afsc.org/action/tell-president-biden-restore-right-to-claim-asylum

Tell President Biden: Restore the right to asylum!

Sign our petition today

American Friends Service Committee

1.89K subscribers

End Title 42!

<div class=”player-unavailable”><h1 class=”message”>An error occurred.</h1><div class=”submessage”><a href=”https://www.youtube.com/watch?v=PpQH–gTPoA” target=”_blank”>Try watching this video on www.youtube.com</a>, or enable JavaScript if it is disabled in your browser.</div></div>

Migrants should be welcomed with dignity and compassion—not turned away or treated inhumanely.

Finally, after over two years, a district court has ruled that the Title 42 expulsion policy- which has blocked most migrants from crossing the U.S.-Mexico border to seek asylum- violates U.S. law and ordered the Biden administration to end it.

This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Other migrants have been forced to take dangerous routes through deserts, mountains, rivers, and the ocean—facing extreme heat, violence, even death.

The termination of the policy goes into effect at the end of December, unless the administration attempts to delay this. That is why we are calling on the Biden administration to end this policy IMMEDIATELY and to not accompany this with the expansion of detention.

Sign our petition to speak out against this cruel policy today!

Letter to President

Dear President Biden:

I believe that people fleeing dangerous situations in their home countries should be welcome to the United States with compassion—not dealt overwhelming obstacles to seeking asylum.

That is why I am relieved to hear that after over two years, a district court has ended the cruel and unnecessary use of Title 42. This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Under this cruel policy, Black and Brown migrants have suffered disproportionately while some others have been able to seek asylum—evidence of the racism that drives our immigration enforcement policies.

That is why I am calling on the Biden administration to end Title 42 immediately and to not replace it with other inhumane and xenophobic policies that cause similar harm. Additionally, your administration must not accompany this with the expansion of immigration detention. Any efforts to uphold this policy actively supports more family separations, trauma, and violence against Black, Brown, and immigrant communities.

All people—regardless of where they were born, the color of their skin, their culture or religious affiliation—should be able to seek refuge and be welcomed with the compassion, dignity, and respect we all deserve. I urge your administration to do all that you can to end Title 42 immediately—and ensure all migrants can exercise their right to seek asylum.

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The regime that employed this monster to abuse and persecute asylum seekers was voted out of office more than TWO YEARS AGO! Long past time for the Biden Administration to STOP defending, expanding, and carrying out his illegal and immoral policies that inflict “DIRE HARM” on vulnerable LEGAL asylum seekers! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General
Lisa Monaco, Deputy Attorney General
Vanita Gupta, Associate Attorney General
Kristen Clarke, Assistant Attorney General, Civil Rights
Elizabeth Prolager, Solicitor General

When these guys eventually “come out” of their cushy political positions, and are looking for jobs in the “real world” they now blithely ignore, progressives, human rights, and racial justice advocates should remember where they stood and what they did or failed to do when human rights and the rule of law were “on the line!”

🇺🇸Due Process Forever!

PWS

12-10-22

🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”

By Paul Wickham Schmidt

Courtside Exclusive

Dec. 6, 2022

I dissent.

I was outraged when I read in this morning’s Washington Post about the horrible “Sinema/Tillis misnamed immigration compromise” (actually a “sellout”) being negotiated during the lame duck session of Congress. In short, that proposal apparently would trade long overdue protection for “Dreamers” for the rights and lives of refugees and asylum seekers.

https://www.washingtonpost.com/politics/2022/12/05/congress-working-strike-last-minute-immigration-deals/

Incredibly, in the face of U.S. District Judge Emmet Sullivan’s findings that the intentional illegal use of Title 42 had resulted in countless clear violations of the legal rights of asylum seekers, subjecting them to a litany of horrors and abuses that he described as “dire harm,” these legislators would extend those abuses for an indefinite period! That’s notwithstanding evidence not only of the irreparable harm that Title 42 has caused, but also the rather obvious fact that once we “normalize” those abuses, they will never end.

There will always be another fabricated reason for extending the Title 42 charade. Indeed, once we start mischaracterizing abuse as “law,” we can’t even call it “abuse” and hold the abusers accountable! That’s all part of the dehumanizing or “Dred Scottification” process!

Additionally, in the place of a functioning working asylum and refugee system, the proposal would eventually substitute so called “processing centers” and “expedited procedures” to railroad asylum seekers out of the country without due process. And, it wouldn’t address the total dysfunction and denial of due process in our Immigration “Courts” by enacting another long overdue provision: the “Lofgren Article I Immigration court bill!” What a farce!

Let’s be clear about what’s happening here! The legal and human rights of refugees and asylum seekers are not “ours” to trade away for relief for another deserving group that has long been irrationally denied! “Processing centers” are a euphemism for “immigration prisons” — part of the “New American Gulag.” “Expedited processing” is a euphemism for “railroading.” Both detention and artificially expediting dockets have been proven to be ineffective and unjust, over and over. Yet, here we go again!

My outrage turned to shock and dismay when I learned that some erstwhile defenders of due process, human rights, and racial justice for asylum seekers (incredibly) thought that this type of immoral compromise was a “good idea!” Not me!

Restrictionist/nativist Dems masquerading as “moderates” are a huge problem. They play right into the GOP’s hands.

When committing crimes against humanity or giving away refugees’ rights becomes a “strategy,” “option,” or “bargaining chip,” we’re lost as a nation. And, that’s exactly where we’re heading with horrible, immoral proposals like this.

Human rights and due process are non-negotiable! And, I guarantee that extending Title 42, building additional Gulag (rather than making the existing legal asylum and refugee systems work), and railroading asylum seekers will empower smugglers and lead to further growth of our underground population.

Human migration won’t be stopped by ineffective and immoral “deterrence.” And, although many hate the idea, refugees basically “self-select” and are driven by forces beyond our immediate control.

Refugees are, by definition, folks who can’t return! So, there is no reason to believe that true refugees (of which there are many) are going to be “deterred.” They might be “incentivized” to seek refuge in particular, relatively safe, places; but, nobody seems interested in a “carrot” approach — even though the “stick approach” has failed and continues to do so!

Look at the folks who continue to die in vessels in the Mediterranean even though they are fully aware that they are unwanted and that the EU will stop at no cruelty to keep them out.

And, examine the wealth of documentation that folks forced to “remain in Mexico” — and apply under what we know to be a corrupt and inadequate system — are systematically abused and exploited.

This time, we’re not just “pushing the St. Louis out to sea.” We’re torpedoing her and watching the passengers drown. And Dems are a huge part of the problem!

Other (soon to be former) progressive Democrats might choose to “go along to get along” with heaping additional abuses on largely defenseless refugees and asylum seekers. But, not me! I dissent!

🇺🇸Due Process Forever!

PWS

11-06-22

🤯🏴‍☠️🤡🤮👎🏽INCOMPETENCE WATCH: Lacking Integrity & Skills To Follow The Law, Tone-Deaf, Dangerous, & Disingenuous Biden Immigration Officials Consider Additional Massive Violations Of Human Rights For Asylum Seekers! — ACLU & NDPA Ready To Resist Administration’s Latest Unwarranted Assaults on Human Rights, Common Sense, & Human Decency!

https://www.nytimes.com/2022/12/01/us/politics/biden-immigration-asylum-restrictions.html

From Michael Shear & Eileen Sullivan the NY Times:

WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.

The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.

People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.

But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.

. . . .

*****************************

Read the complete article at the link.

[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!

In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me!

In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!

“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”

The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:

“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”

I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”

The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!

🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!

PWS

12-05-22

🤯☠️LARGELY OVERLOOKED “NUGGET” IN TRAC’S LATEST ASYLUM “DATA DUMP” SHOWS SCOPE OF BIDEN ADMINISTRATION’S FAILURE TO BRING DUE PROCESS, PROFESSIONAL EXPERTISE, VISION TO BROKEN ASYLUM SYSTEM!

Trump Dumping Asylum Seekers in Hondiras — Despite two years of blather and broken promises, the Biden Administration’s approach to asylum at the border hasn’t advanced much over Trump’s. That’s a shame, because the tools and expertise to fix the system are available, yet largely ignored by the Administration. It might come to a head on Dec. 22.
Artist: Monte Wolverton
Reproduced under license

https://trac.syr.edu/whatsnew/email.221129.html

As experts predicted, the Biden Administration’s poorly-conceived and ineptly implemented “expedited asylum dockets” have sharply diminished favorable outcomes and due process for asylum seekers in a broken system already stacked against them. This preventable disaster is particularly acute for the too many unrepresented applicants who have little chance of relief in a system designed to reduce them to dehumanized denial statistics.

But, the real “sleeper” here is that over three quarters of the cases “referred” by the Asylum Office are GRANTED by the Immigration Courts. This shows a gross “over-referral” of cases to the Immigration Courts that could and should be expeditiously granted at the Asylum Office. The Administration’s regulation change to give Asylum Officers more authority to grant asylum at the first instance has not had the positive effects it should have.

Of course, the Administration’s unforgivable failure to “leverage” asylum grants for recently arrived refugees cripples their border response and creates fodder for GOP White Nationalist xenophobes. It builds unnecessary backlogs and promotes “aimless docket reshuffling” in Garland’s disgracefully dysfunctional and hopelessly backlogged EOIR!

But, beyond that, this statistic also projects that a large part of EOIR’s largely self-inflicted “asylum backlog” consists of clearly grantable, represented “affirmative” asylum cases referred by the Asylum Office. Rather than working with the private bar to identify and prioritize these cases in an orderly, professional manner for expedited grants, Garland has done the exact opposite!

The problem of mass over-referral to EOIR by the Asylum Office is hardly “today’s news.” Indeed, in 2016, the year I retired from the bench, 83% of the “affirmative” referrals by the Asylum Office were GRANTED in Immigration Court! https://www.statista.com/statistics/234398/affirmative-asylum-case-grant-rate-by-us-immigration-courts/ And, that was with a BIA setting precedents that were generally, and quite incorrectly, unfavorable to asylum seekers. Of course the latter problem has also gotten worse in the intervening years.

As I have pointed out before, despite two years to reform and improve the asylum system at both DHS and EOIR, the Biden Administration appears woefully unprepared to reinstitute the rule of law for asylum seekers on December 22 in a manner that is fair, efficient, reasonable, and humane. Failure to solve the long-festering problem of under-granting asylum and over-referring cases to EOIR is just part of the overall ineptitude, lack of dynamic leadership, absence of vision, and, frankly, moral vapidity of the Biden Administration on human rights and racial justice.

Failure to timely and competently grant asylum at the first instance is a major driver of disorder and backlogs at both USCIS and EOIR. That’s basically “Good Government 101,” apparently not required to work on immigration in this Administration.

The process requires close coordination and cooperation with NGOs and the pro bono bar for representation (essential for due process), quick identification and granting of strong cases, and orderly resettlement (in place of the random bussing by GOP grandstanding governors curiously empowered by the Biden Administration’s lack of leadership).

But, if there is a plan by the Administration to involve the private sector in a positive manner, it’s certainly a secret. That’s tragic, as the imbalance in experience, expertise, and competence between the private bar, where it resides, and the Administration, where it doesn’t, has reached incomprehensible levels!

I always hope for the best, even when it’s against the odds. But, if disaster and massive human rights violations unfold on and after Dec. 22, expect the Biden Administration, like Trump, to blame everybody but themselves.

The job of creating order out of disorder is likely to fall primarily on NGOs and advocates at or near the border. As always, the first priority is saving as many refugee lives as possible. But, the next priority is to hold the Biden Administration accountable and not let them shift the blame for their self-created disorder at the border and the predictable, yet avoidable, mess they appear determined to create!

🇺🇸Due Process Forever!

PWS

12-02-22

🇺🇸🗽⚖️ MORE CA 2 REMANDS: NDPA STARS 🌟 MOSELEY & GETACHEW LATEST TO BEST GARLAND’S MESSED UP “COURTS” — BIA Applies Wrong Standards In Yet Another CAT Case, Blows “Changed Circumstance” In Asylum Case, Overlooks & Misconstrues Evidence, Omits Analysis In Unseemly “Race To Wrongly Deny” Life Or Death Cases! — Garland Shrugs Off Legal Debacle Unfolding Every Day on His Watch!

The Hook
Managers yank highly-paid big league pitchers who aren’t getting the job done! When will Garland finally “get out the hook” for his deadly underperforming BIA?
PHOTO CREDIT: © BrokenSphere / Wikimedia Commons

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on CAT, Standard of Review: Omorodion v. Garland

Omorodion v. Garland (unpub.)

“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”

[Hats off to Tom Moseley!]

Thomas Moseley ESQUIRE
NPPA Icon
Newark, NJ

*************************

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-on-cat-standard-of-review-omorodion-v-garland

CA2 on Asylum, Changed Circumstances: Perez Nagahama v. Garland

Perez Nagahama v. Garland (unpub.)

“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”

[Hats off to Genet Getachew!]

**********************

Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “good enough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system?

The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?

Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams.

The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?

Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” — powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.

Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need!

Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!

Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!

Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!

I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.”

Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!

🇺🇸 Due Process Forever!

PWS

12-01-22

From Amy Fischer @ Amnesty International USA:

From Mary Miller Flowers @ Young Center for Immigrant Children’s Rights:

From Kate Jastrom @ Center for Gender & Refugee Studies @ Hastings Law:

From Maria Daniella Prieshoff @ Tahirih Justice Center:

From Sen. Robert Menendez (D-N.J.):

From Jonathan Blazer @ ACLU:

From Margaret Cargioli @ Immigrant Defenders Law Center:

🇺🇸Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

By Catherine Rampell

🇺🇸 Due Process Forever!

Related posts:

Theresa Vargas reports for WashPost:

Here’s more on GOP political stunts with vulnerable humans as pawns from today’s WashPost:

🇺🇸 Due Process Forever!

Related posts:

Chico Harlan & Stefano Pitrelli report for WashPost:

🇺🇸 Due Process Forever!

Related posts:

Hamed Aleaziz reports for the LA Times:

🇺🇸 Due Process Forever!

Related posts:

Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:

🇺🇸 Due Process Forever!

Related posts:

Here’s the latest from TRAC Immigration:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

CA5 Blasts BIA for “Complete Lack of Discussion of…Evidence” in Mexican CAT Case

🇺🇸 Due Process Forever!

Related posts:

Tell President Biden: Restore the right to asylum!

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General

Lisa Monaco, Deputy Attorney General

Vanita Gupta, Associate Attorney General

Kristen Clarke, Assistant Attorney General, Civil Rights

Elizabeth Prolager, Solicitor General

🇺🇸Due Process Forever!

Related posts:

🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”

By Paul Wickham Schmidt

Courtside Exclusive

Dec. 6, 2022

🇺🇸Due Process Forever!

Related posts:

From Michael Shear & Eileen Sullivan the NY Times:

🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!

Related posts:

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports from LexisNexis Immigration Community:

CA2 on CAT, Standard of Review: Omorodion v. Garland

🇺🇸 Due Process Forever!

Related posts: